News

Lawyer explains when school district can exclude public

by
Barbara Wood / Almanac

The governing board of the Menlo Park City School District has approved a plan to form or expand a number of district committees to help plan the district's future after the failure of two parcel taxes in May. (Photo by Michelle Le/The Almanac)

After promising to involve the public in future planning, the Menlo Park City School District invited a lawyer to a board meeting June 13 to explain why the public can legally be excluded from some of those discussions.

On June 7, Superintendent Maurice Ghysels presented the school board with a proposal to involve the public in planning the future of the district.

It was something the board had promised to do in May, after two parcel taxes failed to reach the two-thirds' voter approval threshold required for passage.

But the superintendent invited an attorney to the June 13 board meeting to explain why some new committees the superintendent wants to form to look at options for the future of the district aren't required to be open to the public.

Deputy County Counsel Tim Fox, who serves as the district's "in-house" attorney, came to the meeting to talk about California's open meetings law, the Brown Act.

School boards, like city councils or planning commissions, must do their business in public -- announcing meetings in advance, and making public the agendas and other documents given to the board. Limited exclusions exist for legal and personnel matters and labor negotiations.

Mr. Ghysels had proposed expanding three existing committees and adding two new ones to discuss issues including the district's finances, its use of technology, better ways to communicate with the public, ways to attract and retain teachers and other staff, and ways to balance the budget, including with a parcel tax.

Mr. Fox said that three of those committees -- the board's existing audit and technology committees and a new board task force on employee recruitment and retention -- will be governed by the Brown Act and require public notice, agenda and document posting, and open meetings.

Two superintendent's committees, which will look at the way the district communicates with the public and at ways to balance the budget, are not governed by the Brown Act, Mr. Fox said. That means they don't need to have their meetings announced and can take place in private.

The difference, Mr. Fox told the board, is that a committee formed by the board, with members appointed by the board, is subject to the Brown Act. "The bottom line is this, when the board itself decides it needs an advisory body," establishes it and sets its meeting time "the rule is the Brown Act will apply to that committee," Mr. Fox said.

"Other advisory committees not created by the board," he said, "don't have to comply with the Brown Act." Instead, those committees, which can include board members as long as a majority of the board isn't on the committee, report their findings to the board at public meetings.

He also said that certain board committees, called "ad hoc advisory subcommittees" are not subject to the public meetings law if they are set up to only explore a limited subject for a limited amount of time, and have less than a quorum of board members.

Board members said having to comply with the Brown Act can be an administrative headache. "We don't want to slow down and create a bureaucracy," said board member Terry Thygesen. However, she said, since the findings of the superintendent's committees will be presented at public board meetings, that work will be done in public.

"The intent is to make sure everything we do, that the board is going to vote on, gets processed through public meetings with public input," said Ms. Thygesen.

Resident Joe Giarrusso agreed. "Having committees that are all tied to the Brown Act" can lead to a process taking more time, he said.

Board members also made sure, however, that even if the superintendent's committee meetings were not open to the public, that members of the public could serve on them.

"The reason for setting this up this way is so there can be additional engagement with the public outside of board meetings," said Ms. Thygesen.

On topics such as how district employees are attracted, compensated and retained, "I want to make sure that we've got a very clear understanding about this as a board and a community, and that we've had community members diving deeply into this," she said.

District resident Peter Carpenter, who said his uncle, Bud Carpenter, helped write the Brown Act, had another view. "What is legal is not necessarily what is wise," he told the board.

"My advice to you is to not take advantage of the ad hoc committee provision," he said. "The law sets a minimum standard. It does not prevent you from going beyond that standard."

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 21, 2016 at 6:20 pmPeter Carpenter is a registered user.

It is worth reading and embracing the Preamble to the Brown Act:

"In enacting this chapter, the Legislature finds and declares that the public commissions, boards, and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly."

"The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."

The people reconfirmed that intent fifty years later at the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:

"The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny."

The Brown Act's other unchanged provision is a single sentence:
"All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter."

As to the authorship of the Act:

"In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks
looking into the way local agencies conducted meetings. State law had
long required that business be done in public, but Harris discovered secret
meetings or caucuses were common. He wrote a 10-part series on "Your Secret
Government" that ran in May and June of 1952.

Out of the series came a decision to push for a new state open meeting law.
Harris and Richard (Bud) Carpenter, legal counsel for the League of California
Cities, drafted a bill and Turlock Assembly Member Ralph M. Brown agreed
to carry it. The bill passed the Legislature and was signed into law in 1953 by
Governor Earl Warren."

Posted by Menlo Voter.
a resident of Menlo Park: other
on Jun 21, 2016 at 7:34 pmMenlo Voter. is a registered user.

The school board still doesn't get it. We want TRANSPARENCY. That doesn't mean because you HAVE to, but because it's the right thing to do. We're sick of your opaque running of the school board. ALL of these committees should be open to the public.

Posted by Louise68
a resident of Menlo Park: other
on Jun 21, 2016 at 8:38 pm

Pete Carpenter ---
Thank you, thank you, THANK you, for your awesome support of the public's right to have control over the public's business. And thank you very much for stating that any law that states a minimum never prevents anyone from going beyond that minimum. Too many people use the law as an excuse to do only the bare minimum.

I am so proud of you for trying to keep our local government agencies honest and open and truly committed to being true public servants. You seem to be someone who was raised to care about others and to have integrity. Thank you.

As for Mr. Ghysels ad our School Board --
As far as I am concerned, if they truly cared about the welfare of our K-8 school-children, they would all resign immediately, and would refuse to ever serve on any public agency or in any position of responsibility ever again. They have proven by their past actions that they have forfeited any reason for the public to trust that they are committed to being truly good public servants.

Failing that, they all should be replaced ASAP by people who have already shown that they truly care about our K-8 school-children, and who already have proven themselves to be good public servants.

The School Board has promised to be "transparent", yet Maurice Ghysels, the man they chose as Superintendent, has now stated publicly that he wants to form two new committees whose meetings would not be open to the public and whose business would not be conducted in public.

Am I the only one who sees the gigantic contradiction between what the School Board has publicly promised to do and what the Superintendent wants to do?

And -- why do we need to expand those three already-existing committees and form two new committees in order for the School Board's business to be done in public and with meetings that are always open to the public?

(And, no, I am not "picking on" our School Board or on Mr. Ghysels -- that is my opinion about many people on many public bodies or who are in positions of responsibility who should be replaced ASAP, so that the public's good may be truly served.)

Posted by Ernie
a resident of another community
on Jun 21, 2016 at 8:50 pm

This is pretty remarkable. After a resounding, and unexpected defeat at the polls, Maurice Ghysels quickly announced a hiring freeze (if memory serves). I'll show you! Now, he has basically threatened to exclude the public at meetings involving their school district, their tax dollars and affecting their kids. If the MP school Board had any integrity they should consult the lawyer and find out how to to fire Maurice Ghysels asap. Maybe there is a 'you must behave like an adult, not a 2 year old' in his employment contract. After firing Maurice Ghysels, the board should resign as they have let this bafoonery continue unabated for too long.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 21, 2016 at 9:30 pmPeter Carpenter is a registered user.

What was particularly distressing was that after my public comment to the Board urging them not to use the lowest possible standard of compliance with the Brown Act Board Member Thygesen engaged in a seven minute tirade that totally misrepresented what I had said. Clearly she was not listening to my comments.

Unfortunately the School Board's meetings are not recorded and their minutes do not include the content of any public comments. Nor does the School Board include in their Board packets any written correspondence that they receive from the public. These procedures allow Thygesen to essentially rewrite the facts of what was actually presented to the Board.

These procedures have a chilling effect on those individuals who would otherwise participate in providing public input to the Board.

Posted by Look up Ghysels
a resident of another community
on Jun 22, 2016 at 8:04 am

Maybe I will be allowed to at least suggest folks Google or Yahoo "Maurice Ghysels" for articles in the Mountain View Voice about his departure as a Superintendent there. Transparency is not Ghysels' favorite thing.

Posted by Jenson
a resident of Menlo Park: The Willows
on Jun 22, 2016 at 8:53 am

It's a shame that those that sit on the board and hold offices of responsibility within the district can't learn from their mistakes. Menlo voter and Ernie speak the truth. Without transparency future ballot measures will meet the same fate as the last two. You can't speak out of both sides of the mouth and expect to gain anyone's trust. I'm afraid you all get an "F " for not learning how to respect the community you work and live in.

Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 22, 2016 at 9:27 amPeter Carpenter is a registered user.

" Why not error on MORE transparency?"

Here is what the California League of Cities recommends:

"But the Brown Act is a floor, not a ceiling for conduct of public officials."

"The Brown Act allows a legislative body to adopt practices for itself and its subordinate committees and bodies that are more stringent than the law itself requires."

"A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust."

*************

And here is how the Fire Board addresses Public Comments in both its Board Policy Manual and in every agenda:

"The agenda will emphasize the right to public comment by including the following phrase as a preamble to the public comment section:

â€œA fundamental element of democracy is the right of citizens to address their elected representatives, thereforeâ€¦â€

Posted by Jack Hickey
a resident of Woodside: Emerald Hills
on Jun 22, 2016 at 11:49 amJack Hickey is a registered user.

I just verified that the district does not electronically record their meetings. Lenita Villasenor takes notes from which the minutes are prepared. The Sequoia Healthcare District, on whose board I serve, digitally records its meetings and makes the recordings available the following day. I find the recordings to be very useful for validating the draft minutes before approval. I have asked District CEO, Lee Michelson, who has the discretionary authority, to post the recordings on the District website. He has refused. Someone in the MPCSD should ask Superintendent Ghysels to digitally record meetings and post them on their website.